from the INCENTIVES! dept

For reasons no more sound than it possibly felt a bit inadequate when comparing copyright term length with its next-door-neighbor, Canada has increased the copyright term for sound recordings and performances from 50 years to 70 years. Supposedly, this will spur on further creative efforts in the future, seeing as the previous copyright term length brought about a creative drought spanning nearly two decades -- one that commenced shortly after the end of World War II.

This move will allow Canada to keep apace of the United States' contributions to the public domain by ratcheting that number closer to the desired "zero." This should also trigger a massive explosion in creation, seeing as many recording artists will now be able to monetarily support their record labels far into their golden years (theirs -- not the record labels'). This will also serve to keep the recordings out of the hands of deadbeats… like libraries… or archivists.

The TPP is nearing the end game and the U.S. is still demanding many changes to Canadian copyright law, including copyright term extension for all works (not just sound recordings). The Canadian government’s strategy in recent years has been to enact reforms before the trade agreements are finalized in order to enhance its bargaining position. For example, it moved forward with notice-and-notice rules for Internet providers without the necessary regulations in order to have the system in place and protect it at the TPP talks. It may be trying to do the same here by extending term on sound recordings and hoping that that concession satisfies U.S. copyright demands.

This outside pressure would seem to be the prime motivator. It certainly isn't coming from within the country -- not even from the expected cheerleaders of upwardly-mobile copyright terms.

[J]ust last year the Standing Committee on Canadian Heritage conducted a major review of the music industry in Canada with dozens of witnesses taking the time to appear or submit briefs. The final report and the government’s response never raise the term of protection for sound recordings and performances as a concern.

"With each passing day, Canadian treasures like Universal Soldier by Buffy Sainte-Marie are lost to the public domain. This is not in the public interest. It does not benefit the creator or their investors and it will have an adverse impact on the Canadian economy.”

Perhaps this argument could be repurposed for income tax: "Contributing money to public funds is not in the public interest. It does not benefit the guy who wants to keep all that money for himself." The "public interest," apparently, is whatever benefits the labels represented by Music Canada, rather than any other commonly-accepted definition.

Songwriters and performing artists both contribute to the success of a recording. In Canada, the copyright in musical works subsists for the life of the songwriter plus 50 years. Performing artists are not treated equally, as their copyrights expire 50 years after the recording is made. Term extension to 70 years after recording or release partially addresses this disparity.

The smarter move would be to adjust the lengthier term down, rather than crank the shorter terms up. But once you've handed out this extension to a set of creators, you'll never be allowed to roll it back. The creators may recognize the ridiculousness of this arrangement, but those that benefit the most from extended terms -- the middlemen -- have enough clout to ensure copyright protections constantly expand.

from the welfare-for-musicians dept

As even the more traditional maximalists in the US have started to admit that copyright terms are too long, it appears some are still leaning in the opposite direction. Maira Sutton points us to the news that Japan is now looking to retroactively lengthen copyright terms from life plus 50 years to life plus 70 years. Of course, we've gone over this many times before. There simply is no legitimate rationale for such a thing. We're told that the purpose of locking up the public domain behind a government granted monopoly like copyright is to give the creator an extra incentive to create, and to keep the work away from the public domain for a limited period of time. If the creation was made under the rules at the time, then clearly the incentive was enough. To go back and retroactively change the bargain between the creator and the public is to unilaterally change the terms of the deal by flat out taking away the public's right to those works.

The only way in which retroactive copyright term extension makes sense is if copyright is a welfare system for creators, in which the public is taxed to support the estates of wealthy content creators. And, yes, it is wealthy content creators (or, rather, their children and grandchildren) who are the beneficiaries of such extensions, along with the major multinational corporations who hold most of those copyrights. Studies have shown that the overwhelming majority of beneficiaries of extending copyright are not actual content creators, and certainly not "poor" content creators, but "incumbent holders of major back-catalogues, be they record companies, ageing rock stars or, increasingly, artists' estates." The "poor artists" who are often cited in support of such extensions are not even in the picture, because the works of poor artists who died 50 years ago are not making much money today. It's the huge rockstars' and their works that are still making money today.

So why is Japan trying to tax the public, to take away their rights, all to support the giant record labels and the grandchildren of rock stars?

Of course, this is hardly the first time this debate has come up. We wrote about a similar plan in Japan nearly six years ago, which went nowhere. Hopefully, more sensible copyright experts in Japan prevail. Either way, the fact that Japan is now a big part of the TPP, and wants to help "lead" the discussions to finalize that agreement should be seen as worrying -- since it may seek to put in clauses that would limit the abilities of countries like the US to roll back copyright terms.

from the urls-we-dig-up dept

The meaning of words change all the time, and they may be changing faster than ever before. It's hard for traditional dictionaries to really keep up with new words, but linguists are trying to record and categorize all the sounds they're observing. It ain't easy, but it's interesting to keep track of all the ways our language changes as people around the world are increasingly connected. Here are just a few examples.

from the take-a-stand dept

With academics increasingly fighting back against ridiculous academic journal publishing rules that lock up information, we've often wondered how academics who work for some of those journals feel. In one case, those academics have just made a very loud statement. The editor and entire editorial board for the Journal of Library Administration have all resigned en masse to protest the journal's closed access provisions, which they claim are "too restrictive and out of step with the expectations of authors." The editor, Damon Jaggers (also an associate university librarian at Columbia University) only became the editor recently, but noted that many authors he approached pushed back about the licensing terms.

Some found the terms too confusing, Mr. Jaggars said, while others felt they were too restrictive. Many requested, instead, a form of Creative Commons license, arguing that the journal’s agreement left them little ownership of their own work.

What may have pushed the editorial board over the edge, it seems, was the Aaron Swartz story. One of the editorial board members, Chris Bourg, who is an assistant university librarian at Stanford, published a blog post in which she directly cites the Swartz situation as making it clear she needed to resign:

Later, Damon asked me to write an article about our Library Concierge project for JLA, and again I said yes. When Damon contacted me later with an actual deadline for the article, I told him I was having second thoughts. It was just days after Aaron Swartz’ death, and I was having a crisis of conscience about publishing in a journal that was not open access. Damon reminded me (gently) that not only had I agreed to write for JLA, but I was on the Editorial Board, so this could be a problem. More importantly, he assured me that he was working with Taylor & Francis to try to get them to adopt less restrictive agreements that would allow for some form of Creative Commons license. He told me his strategy was to work from within to encourage change among publishers. Once again, Damon’s power of persuasion worked.

So, I worked on the article, and just recently submitted it. In the meantime, Damon continued to try to convince Taylor & Francis (on behalf of the entire Editorial Board, and with our full support), that their licensing terms were too confusing and too restrictive. A big part of the argument is that the Taylor & Francis author agreement is a real turn-off for authors and was handicapping the Editorial Board’s ability to attract quality content to the journal. The best Taylor & Francis could come up with was a less restrictive license that would cost authors nearly $3000 per article. The Board agreed that this alternative was simply not tenable, so we collectively resigned. In a sense, the decision was as much a practical one as a political one. Huge kudos to Damon for his persistence, his leadership, and his measured and ethical stance on this issue.

Everyone resigned on Friday. As of the latest updates, the company that publishes the journal, Taylor & Francis had not responded to anyone about the resignations.

Either way, good for this team for taking a stand against such restrictive practices. Hopefully it helps to wake up other journals and publishers that closing off access is no way to run an academic journal.

from the who-needs-good-customer-service-when-you-have-a-lengthy-TOS? dept

For all the talk about the customer being right, the general attitude of most companies is that the customer is little more than a necessary evil. Between treating them like thieves by insisting on DRM, tying them up with EULAs that kick in as soon as the box is opened (and unreturnable), subjecting them to lengthy Terms of Service that no sane person would read start to finish and stripping away legal options through forced arbitration, most companies still pay lip service to the customer being "right" while carefully removing anything that might be considered a customer's "rights."

The plaintiff in Nguyen v. Barnes & Noble 12-cv-0812-JST (RNBx) (C.D. Cal.; Aug. 28, 2012) sued because after he purchased two HP TouchPad tablet computers at a price he was happy with, Barnes & Noble e-mailed him saying they had cancelled the order.

Nothing unusual about this so far. Products sell out or pricing errors occur. The correct response would be to offer a replacement at the price Nguyen attempted to pay, but Barnes & Noble decided to simply cancel the order. Lousy customer service isn't uncommon, and B&N was likely surprised to find itself named in a lawsuit, especially when its Terms of Service clearly specify that taking it to court is not an option.

Barnes & Noble filed a motion to move this dispute to arbitration, a much more favorable venue, considering companies win in arbitration nearly 95% of the time. It claimed that Nguyen, simply by visiting the site, had agreed to the terms of use, which were buried in a link at the bottom of the page. Nguyen countered, stating that he did not "affirmatively assent" to the Terms of Use, as it was not necessary to click on the Terms of Use link to make a purchase and B&N never directs the customer to the Terms of Use at any point in the purchase process.

B&N's motion was denied as it couldn't show that Nguyen had "notice of the terms." It's a small oversight but one that could affect many other companies who choose to rely on the dubious legality of "browserwrap," rather than the more intrusive (and more enforceable) "clickwrap." Eric Johnson points out that Barnes & Noble had several options but instead chose to rely on a single, out-of-the-way link.

B&N could have had a pop-up “I agree” window or even just a box that Nguyen had to check saying he agreed to and had read the terms of service. They also could have written on the checkout screen about the transaction was subject to terms of service. But they didn’t do any of that. So, as a result, it looks like Nguyen will get his day in court.

This doesn't really do much for consumers, however. It just means that Barnes & Noble (along with other companies) will institute something like the above to make sure their preferred legal option is not circumvented. This will do nothing to make the system less stacked in favor of the "house," and long, unreadable Terms of Service will still be the order of the day. Considering that not agreeing to the Terms of Service means not using that service, companies can still rely on customers to sell themselves in order to proceed with transactions. As Eric Johnson points out, this effectively makes them "answerable to no one."

from the legal-conundrums dept

We recently wrote about the initially cool, but eventually frustrating, story of author James Erwin, who turned a comment he made on a Reddit story into a movie deal with Warner Bros. The frustrating part came out of the news that Erwin mentioned in an interview that due to the "locked-down IP rights" common in the movie industry, he couldn't spend more time on Reddit with the community that built up around the "Rome, Sweet Rome" story.

Now, some in our comments questioned whether Erwin even had the right to grant such an exclusive license to Warner Bros., noting both that the community helped develop part of the story and that Reddit's terms might forbid it. Eriq Gardner, at THREsq, decided to dig into the legal question, and suggests that it's entirely possible that Warner Bros. could not have exclusively licensed the story, and in theory anyone else could try to get the same rights from Reddit itself.

Part of it is the boilerplate language in Reddit's terms:

"you agree that by posting messages, uploading files, inputting data, or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so."

This really is boilerplate. Look at almost any modern user-generated content platform and you'll see similar terms. But, at the very least here, it suggests that while Erwin could offer up some rights to WB, he cannot grant them exclusively. In fact, Reddit itself could make the same movie based on this... or it could separately license the story to a competing studio. It seems unlikely that they would do that, but it certainly seems possible.

Additionally, there are still some questions about whether or not Erwin could have licensed parts of the story that were developed by others:

although Erwin undoubtedly did much of the hard work in crafting the story himself, during the genesis of "Rome, Sweet Rome," some of Reddit's other users made suggestions to his work that may ultimately shape the final story.

Those concepts, if they are copyrightable, might not be Erwin's to exclusively license.

Either way, while I doubt it will happen, it certainly would be interesting and amusing to see what would happen if Reddit tried to license the same rights to a competing studio.

from the double-standards dept

Ah, the RIAA is so full of double standards and hilarious hypocrisy that they almost make this kind of thing too easy. On Friday, we wrote about Thursday's hearings for the Copyright Office, concerning the question of what to do about pre-1972 sound recordings, which technically are not covered by federal copyright law, but instead aggressive state copyright laws that mean most such works won't hit the public domain until 2067 -- way beyond what it would be if they were under federal copyright law (assuming -- and this may be a big assumption -- that copyright terms are not extended again). Those hearings continued on Friday, and as with the day before, the RIAA provided all sorts of ridiculous quotes. Basically, anything that hurts the RIAA is pure evil, unconstitutional and damaging to culture -- even if the arguments are contradictory and go against what the RIAA argues on other issues.

Once again, my coverage is based largely on the excellent coverage from Copycense. I've collated some of the key tweets he made in covering the hearings at the end of this post.

Most of the ridiculousness came in the second session of the day, but there was one comment that deserved mention during the first session, when the RIAA rep on the panel claimed that "Given 'piracy' issues" the last thing that anyone should want is to reduce the terms of copyright. I'm trying to figure out what one has to do with the other. If anything, it seems like you could make a pretty strong argument in the other direction. The rise of widespread infringement suggests that the industry has failed to make works available to the public in a way that properly benefits the public. Thus, shouldn't we be making those works even more available? Either way, the statement from the RIAA here is a red herring. The idea of putting such works under federal copyright law would just bring those works in line with the already ridiculously long copyrights that the RIAA fought for not so long ago.

Then we get to the second panel, which focused on the Constitutional issues of fixing the excessive copyright issues for these works, with one key suggestion being to put those works under federal copyright law. Jennifer Pariser, from the RIAA -- the same woman who the day before had ridiculously and incorrectly insisted that the public domain had no value continued along that path again. She claimed that such a change to copyright law would lead to litigation and would be a violation of the takings clause (part of the Fifth Amendment). Basically, she was claiming that changing the terms of copyright on these works is the equivalent of taking away rights from the copyright holders and giving them to the public. In fact, she specifically claimed that "the less harm" you do to changing the term of copyright, the less of an issue there is. Hmm.

So, here's the question: where was the RIAA and Pariser on the issue of massive copyright extension over the last century? Oh, you guessed it, the RIAA has been totally supportive of it. So, you see, according to them, you can only ratchet copyright law in one direction. If you take away from the public (which copyright is supposed to benefit), that's fine. If you help the public... well, that's just downright unconstitutional!

Pariser also pushed on with the same claim from the day before about the lack of value in anything that goes into the public domain, and thankfully, others pushed back on that, pointing out (1) that copyright law was never intended to be set up so that the copyright holder got all the value out of the work and (2) no one was looking to make the works valueless, they were just talking about removing the monopoly, which from an economic standpoint makes a ton of sense.

Those same folks, usually representing libraries, pushed back on many of Pariser's points, highlighting that many of these works had already been covered by more than 120 years of copyright, and how much more do they realistically need? At that point, someone asked a perfectly relevant question: why should sound recordings get longer protection than any other work... to which Pariser responded (apparently with a straight face, though I'm not sure how), that the RIAA has "developed business models" around the extended length of copyright on pre-1972 sound recordings.

To put it mildly, this is laughable. The works that the RIAA labels are still making money on would still be under copyright for a long, long time (though, as we noted on Friday, perhaps the real fear from the RIAA is that under federal copyright law the actual artists and/or their heirs could reclaim the copyright). But the fact is, the vast majority of these older works are disappearing. To suggest that these copyrights should remain so long because of the record labels' business model is ridiculous.

Copyright law is not, was not, and has never been about protecting the record labels' business model.

If they did set up their business models based on this (and they did not), that should make NO difference. I mean, let's take that to the logical extreme. If we were to use the RIAA's own logic here, then that means the PROTECT IP Act should not pass, because it would impact the business models of other types of sites. And, according to the RIAA, no laws should change that impact someone's business models, right? I'm assuming this also means the RIAA is now against three strikes laws, ACTA, TPP and all sorts of other proposals that would negatively impact the business models of others, right?

And, just to cap off the ridiculousness, at the beginning of the following panel, an RIAA representative had the ridiculous gall to suggest that a change to how these old works are treated might decrease the availability of these old works since there wouldn't be the same incentive to produce sound recordings. I hope you weren't taking a drink when reading that, because it should have made you spit it out. The whole two day event was to discuss the very fact that so many of these works are disappearing, because the RIAA record labels are not making them available. The whole point of moving some of these old works into the public domain is so that others can make them available. And the RIAA is twisting that argument -- again apparently based on its ridiculously confused understanding of the public domain -- to suggest that even fewer works would be available if freed up. Thankfully others quickly pointed out that the issue is the works aren't available now. Hopefully, the Copyright Office properly discounted the RIAA's FUDful claims at the hearing, because they went beyond being just slightly misleading into being flat-out ridiculous.